Air Quality Designations for the 2008 Lead (Pb) National Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule establishes air quality designations for most areas in the United States for the 2008 lead (Pb) National Ambient Air Quality Standards (NAAQS). In a previous action established on November 16, 2010, the EPA designated as “nonattainment” 16 areas as violating the 2008 Pb NAAQS based on data from the pre-2010 monitoring network. For all other areas, the EPA deferred action so that data from newly deployed monitors could be considered in making appropriate designation decisions. In this action, the EPA is designating all remaining areas of the United States, including Indian country. The Clean Air Act (CAA) requires areas designated nonattainment by this rule to undertake certain planning and pollution control activities to attain the standards as quickly as reasonably possible.

DATES:

Effective Date: The effective date of this rule is December 31, 2011.

ADDRESSES:

The EPA has established a docket for this action under Docket ID NO. EPA-HQ-OAR-2009-0443. All documents in the docket are listed in the index at http://www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in the docket or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Office of Air and Radiation Docket and Information Center is (202) 566-1742.

In addition, the EPA has established a Web site for this rulemaking at: http://www.epa.gov/leaddesignations/2008standards/index.html. The Web site includes the EPA's final state and tribal designations, as well as state initial recommendation letters, the EPA modification letters, technical support documents, responses to comments, and other related technical information.

FOR FURTHER INFORMATION CONTACT:

Rhonda Wright, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, N.C. 27711, phone number (919) 541-1087 or by email at: wright.rhonda@epa.gov.

Regional Office Contacts

Region 1—Robert McConnell (617) 918-1046,

Region 2—Mazeeda Khan (212) 637-3715,

Region 3—Melissa Linden (215) 814-2096,

Region 4—Steve Scofield (404) 562-9034,

Region 5—Andy Chang (312) 886-0258,

Region 6—Terry Johnson (214) 665-2154,

Region 7—Stephanie Doolan (913) 551-7719,

Region 8—Kevin Leone (303) 312-6227,

Region 9—Ginger Vagenas (415) 972-3964,

Region 10—Steve Body (206) 553-0782.

SUPPLEMENTARY INFORMATION:

The public may inspect the rule and state-specific technical support information at the following locations:

Table of Contents

The following is an outline of the Preamble.

I. Preamble Glossary of Terms and Acronyms

II. What is the purpose of this document?

III. What is lead?

IV. What are the health and welfare concerns addressed by the Pb standards?

V. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements?

VI. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

VII. What air quality data has the EPA used?

VIII. How do designations affect Indian country?

IX. Where can I find information forming the basis for this rule and exchanges between the EPA, states, and tribes related to this rule?

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act (NTTAA)

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

K. Congressional Review Act

L. Judicial Review

I. Preamble Glossary of Terms and Acronyms

The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act

AQS Air Quality System

CAA Clean Air Act

CBI Confidential Business Information

CFR Code of Federal Regulations

DC District of Columbia

EO Executive Order

EPA Environmental Protection Agency

FR Federal Register

FEM Federal Equivalent Method

FRM Federal Reference Method

IQ Intelligence Quotient

NAAQS National Ambient Air Quality Standards

NTTAA National Technology Transfer and Advancement Act

OMB Office of Management and Budget

Pb Lead

PM Particulate Matter

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

SBA Small Business Administration

SIP State Implementation Plan

UMRA Unfunded Mandate Reform Act of 1995

TAR Tribal Authority Rule

TSD Technical Support Document

TSP Total Suspended Particulate

TPY Tons Per Year

U.S. United States

VCS Voluntary Consensus Standards

II. What is the purpose of this document?

The purpose of this action is to promulgate and announce designations and boundaries for areas of the country for the 2008 Pb NAAQS based on available information, in accordance with the requirements of the CAA. All area designations for each state, and the boundaries for each area, appear in the table at the end of this final rule. The EPA has been working closely with the states involved in these designations and has taken several steps to announce that this rule is available. The EPA has posted the notice on the EPA's designations Web site and provided a copy of the rule to those states with nonattainment areas.

This notice identifies the five areas being designated as nonattainment areas for the 2008 Pb NAAQS. These five areas surround violating monitors in Arecibo, Puerto Rico; Chicago, Illinois; Belding, Michigan; Saline, Kansas; and Pottawattamie, Iowa. The basis for designating these areas as nonattainment areas is monitored air quality data from calendar years 2008-2010 indicating violations of the NAAQS. For these areas being designated nonattainment, states must develop a State Implementation Plan (SIP) that meets the requirements of section 172(c) and subpart 5 of Part D of the CAA, including providing for attainment of the NAAQS as expeditiously as practicable, but no later than December 31, 2016. These SIPs must be submitted to the EPA within 18 months of the effective date of these designations, i.e., by June 30, 2013.

This notice also identifies the expansion of the boundary of one nonattainment area—the Lower Beaver Valley nonattainment area in Pennsylvania—that was designated nonattainment on November 16, 2010. The expansion incorporates additional land area that the EPA has determined does not meet the 2008 Pb NAAQS. This action does not affect the required attainment date or SIP submission deadline for this nonattainment area.

The EPA is designating three areas (Knox County, Tennessee; an area surrounding Hayden, Arizona; and Orange County, New York) as unclassifiable on the basis that there are available monitoring data from recent periods indicating a significant likelihood that the areas may be violating the 2008 Pb NAAQS, but the available information is insufficient at this time to make nonattainment designations. In the 2008 Pb NAAQS rule, the EPA required new monitors to be sited near sources emitting more than one ton per year or more beginning in 2010 and in certain non-source oriented locations by December 27, 2011. Due to the timing of monitor siting, monitoring data are available for the first several months of 2011 for some sites with no 2008-2010 data, two of which have data in AQS that exceed the standard (Knox County, Tennessee and Hayden, Arizona). A previously established monitor in the Orange County, New York, area also has data in AQS from early 2011 that exceed the standard. Because of the form of the 2008 Pb NAAQS, one 3-month average ambient air concentration over 0.15 micorgrams per cubic meter (μg/m³) is enough to cause a violation of the Pb NAAQS. However, before the EPA can finalize nonattainment designation for these areas, the data that were reported to AQS must be quality assured and certified and appropriate nonattainment area boundaries must be defined for the areas. Therefore, the EPA is designating these three areas as unclassifiable until this process can be completed.

The EPA received a recommendation on behalf of the Governor of Arizona with recommended boundaries for an area surrounding Hayden, Arizona, and the EPA is designating that area as unclassifiable consistent with that recommendation. Consistent with the EPA's view that the perimeter of a county containing a violating monitor is the initial presumptive boundary for nonattainment areas, the EPA is designating the entirety of Orange County, New York, and Knox County, Tennessee, as unclassifiable. However, the EPA recognizes that experience with other initial designations for the Pb NAAQS has indicated that where a NAAQS violation is attributable to a single source, area-specific analyses have served as a basis for designating a nonattainment area that is smaller than the county. Accordingly, before redesignating these two areas as nonattainment and consistent with the CAA, the EPA intends to work with the states to identify specific boundaries that appropriately encompass violating areas and any areas contributing to violations in these counties. The boundaries of any nonattainment area may well be smaller than the county boundaries, and in such case the EPA anticipates that the remainder of these two counties would be redesignated unclassifiable/attainment. The EPA notes that, although it is designating these three areas as “unclassifiable” to reflect the recent monitoring data, there are no additional planning or control requirements that apply as a result of an unclassifiable designation, as compared to a designation of “unclassifiable/attainment.”

All other areas of the country are being designated as unclassifiable/attainment, meaning the available information does not indicate that the air quality in these areas exceeds the 2008 Pb NAAQS.

When the EPA issued the 2008 Pb NAAQS, we provided that the 1978 Pb NAAQS would be revoked 1 year after the effective date of designations for the 2008 NAAQS, except in areas designated nonattainment for the 1978 NAAQS where the standard will remain in effect until a SIP is approved for the new standard. There are two areas designated nonattainment for the 1978 NAAQS: Herculaneum, Missouri, and East Helena, Montana. Herculaneum was designated nonattainment for the 2008 standard in 2010, and thus the 1978 standard will remain in effect until an attainment SIP for the 2008 NAAQS is approved by the EPA. East Helena is being designated unclassifiable/attainment for the 2008 standard in this action, and the 1978 standard will remain in effect until a maintenance SIP for the 2008 NAAQS is approved by the EPA. For all other areas designated in this action, the 1978 standard is revoked as of December 31, 2012.

In addition to making designations for the 2008 Pb NAAQS, the EPA is also revising 40 CFR part 81 to clarify the presentation of designations for the 1978 standard and the 2008 standard and to correct certain inadvertent errors concerning the 1978 standard. In making designations for the 2008 standard last year, the EPA inadvertently changed certain information in part 81 for the 1978 standard, such as identifying areas that had been designated “unclassifiable” as “attainment,” identifying areas that were not designated at all as “unclassifiable,” or including the wrong effective date for a designation. Although these errors have no practical effect, and the 1978 standard will be revoked for all but two areas by December 31, 2012, the EPA did not intend to alter any designations for the 1978 standard in making designations for the 2008 standard and is thus correcting the errors to ensure that part 81 reflects the proper designations for the 1978 standard.

III. What is lead?

Lead (Pb) is a metal found naturally in the environment and present in some manufactured products. The major sources of Pb air emissions were historically motor vehicles (such as cars and trucks) and industrial sources. Motor vehicles emissions of Pb have been dramatically reduced with the phase-out of leaded gasoline, but Pb is still used as an additive in general aviation gasoline used in piston-engine aircraft and remains a trace contaminant in other fuels. Large industrial sources of Pb emissions currently include metals processing, particularly primary and secondary Pb smelters. Lead is also emitted from sources such as: Iron and steel foundries; primary and secondary copper smelters; industrial, commercial, and institutional boilers; waste incinerators; glass manufacturing; and cement manufacturing.

IV. What are the health and welfare concerns addressed by the Pb standards?

Lead is generally emitted in the form of particles, which can end up being deposited in water, soil, and dust. People may be exposed to Pb by inhaling it, or by ingesting lead-contaminated food, water, soil, or dust. Once in the body, Pb is quickly absorbed into the bloodstream and can result in a broad range of adverse health effects. These may include damage to the central nervous system, cardiovascular function, kidneys, immune system, and red blood cells. Children are particularly vulnerable to Pb exposure, in part because they are more likely to ingest Pb and in part because their still-developing bodies are more sensitive to the effects of Pb. The harmful effects to children's developing nervous systems (including their brains) arising from Pb exposure may include intelligence quotient (IQ) loss, poor academic achievement, long-term learning disabilities, and an increased risk of delinquent behavior.

Lead is persistent in the environment and accumulates in soils and sediments through deposition from air sources, direct discharge of waste streams to water bodies, mining, and erosion. Ecosystems near some longstanding point sources of Pb demonstrate a wide range of adverse effects including losses in biodiversity, changes in community composition, decreased growth and reproductive rates in plants and animals, and neurological effects in vertebrates.

V. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements?

After the promulgation of a new or revised NAAQS, the EPA is required to designate areas as nonattainment, attainment, or unclassifiable, pursuant to section 107(d)(1) of the CAA. The Administrator signed a final rule revising the Pb NAAQS on October 15, 2008, which was published in the Federal Register on November 12, 2008, and became effective January 12, 2009. Based on the Administrator's review of the scientific evidence, including numerous studies published since the last review of the Pb NAAQS, and taking into consideration the comments expressed by the Clean Air Scientific Advisory Committee and the public, the Administrator revised the standard from a level of 1.5 μg/m³ to a level of 0.15 µg/m³. In addition, the Administrator changed the averaging time and form to a maximum rolling 3-month average evaluated over a 3-year period. The rule also established new requirements for Pb monitoring networks, including the requirement that new Pb monitors be located in close proximity to the largest Pb emissions sources by January 1, 2010.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d) of the CAA. The CAA requires the EPA to complete the initial area designation process within 2 years of promulgating a new or revised NAAQS. However, if the Administrator has insufficient information to make these designations within that time frame, the EPA has the authority to extend the designation process by up to 1 additional year. By not later than 1 year after the promulgation of a new or revised NAAQS, each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. Tribes are not required to submit recommendations, but the EPA encourages their participation in the designations process. The EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but the EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by the EPA. If the EPA is considering modifications to a state's initial recommendation, the EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to the EPA's promulgation of the final designation. If the state does not agree with the EPA's modification, it then has an opportunity to respond to the EPA and to demonstrate why it believes the modification proposed by the EPA is inappropriate, as contemplated by section 107(d)(1)(B)(ii). Even if a state fails to provide any recommendation for an area, in whole or in part, the EPA still must promulgate a designation that the Administrator deems appropriate, pursuant to section 107(d)(1)(B)(ii).

Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as any area that does not meet an ambient air quality standard or that is contributing to ambient air quality in a nearby area that does not meet the standard. If an area meets either prong of this definition, then the EPA is obligated to designate the area as “nonattainment.” Section 107(d)(1)(A)(iii) provides that any area that the EPA cannot designate on the basis of available information as meeting or not meeting the standards should be designated as “unclassifiable.”

The EPA believes that section 107(d) provides the agency with discretion to determine how best to interpret the terms in the definition of a nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, the EPA believes that the statute does not require the agency to establish bright line tests or thresholds for what constitutes contribution or nearby for purposes of designations.

Similarly, the EPA believes that the statute permits the EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, and contiguous or non-contiguous areas, as may be appropriate for a particular NAAQS. For example, section 107(d)(1)(B)(ii) explicitly provides that the EPA can make modifications to designation recommendations for an area “or portions thereof,” and, under section 107(d)(1)(B)(iv), a designation remains in effect for an area “or portion thereof” until the EPA redesignates it.

Designation activities for federally-recognized tribes are covered under the authority of section 301(d) of the CAA. This provision of the CAA authorizes the EPA to treat eligible tribes in a similar manner as states. Pursuant to section 301(d)(2), we promulgated regulations, known as the Tribal Authority Rule (TAR), on February 12, 1999. 63 FR 7254, codified at 40 CFR part 49 (1999). That rule specifies those provisions of the CAA for which it is appropriate to treat tribes in a similar manner as states. Under the TAR, tribes may choose to develop and implement their own CAA programs, but are not required to do so. The TAR also establishes procedures and criteria by which tribes may request from the EPA a determination of eligibility for such treatment. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate by the EPA for treatment of tribes in the same manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorized by the TAR, tribes may seek eligibility to submit designation recommendations to the EPA. In addition, CAA section 301(d)(4) gives the EPA discretionary authority, in cases where it determines that treatment of tribes as identical to states is “inappropriate or administratively infeasible,” to provide for direct administration by regulation to achieve the appropriate purpose.

To date, one tribe has applied under the TAR for eligibility to submit its own recommendations under section 107(d). Nonetheless, the EPA invited all tribes to submit recommendations concerning designations for the 2008 Pb NAAQS. The EPA worked with the tribes that requested an opportunity to submit designation recommendations. Tribes were provided an opportunity to submit their own recommendations and supporting documentation and could also comment on state recommendations and the EPA modifications.

In light of the new Pb monitoring network, the EPA planned to complete the initial area designations for Pb in two rounds. Designation recommendations and supporting documentation were previously submitted by most states and a few tribes to the EPA by October 15, 2009. In the first round, established on November 16, 2010, the EPA designated as “nonattainment” 16 areas as violating the 2008 Pb NAAQS based on 2007-2009 air quality data from the pre-2010 monitoring network. For all other areas, the EPA extended the deadline for designations by up to 1 year so that data from the newly deployed monitors can be considered in making appropriate designation decisions.

For the second round of designations, states and tribes were given an opportunity to update their recommendation letters, for these remaining areas, by December 15, 2010. After receiving recommendations from states and tribes, and after reviewing and evaluating each recommendation, the EPA provided a response to the states and tribes on June 15, 2011. In these letter responses, we indicated whether the EPA intended to make modifications to the initial state or tribal recommendations and explained the EPA's reasons for making any such modifications. The EPA requested that states and tribes respond to any proposed modifications, made by the EPA, by August 15, 2011. The state and tribal letters, including the initial recommendations, and the EPA's June 2011 responses to those letters, including any modifications, and the subsequent state and tribal comment letters are in the docket for this action.

Although not required by section 107(d) of the CAA, the EPA also provided an opportunity for members of the public to comment on the EPA's June 2011 response letters. In order to gather additional information for the EPA to consider before making final designations, the EPA published a notice on June 21, 2011, (76 FR 36042) which invited the public to comment on the response letters the EPA sent to states in June 2011. In that notice, the EPA provided the opportunity to all interested parties other than states and tribes to submit comments by July 21, 2011. The state and tribal initial recommendations and the EPA's responses, including modifications, were posted on a publicly accessible Web site (http://www.epa.gov/leaddesignations/2008standards/index.html). We did not receive any comments questioning our general approach to these designations. Comments from the public and the EPA's responses to state-specific comments are in the docket for this action.

In this rule, the EPA is designating as “nonattainment” five areas violating the 2008 Pb NAAQS based on 2008-2010 air quality data from the newly deployed monitoring network, extending a previously designated nonattainment area to encompass a violating monitor sited under the newly deployed monitoring network, and designating three areas as unclassifiable based on data reported to AQS in early 2011 that exceed the 2008 Pb NAAQS but have not been quality assured and certified. All other areas are designated as unclassifiable/attainment. The EPA uses this designation in practice for initial designations to mean that available information does not indicate that the air quality in these areas exceeds the 2008 Pb NAAQS.

VI. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

In the notice of proposed rulemaking for the revised Pb NAAQS (73 FR 29184), the EPA issued proposed guidance on its approach to implementing the standard, including its approach to initial area designations. The EPA solicited comment on that guidance and, in the notice of final rulemaking (73 FR 66964), adopted guidance concerning how to determine the boundaries for nonattainment areas for the Pb NAAQS. In that guidance, the EPA indicated that it would use monitoring data from the 3 most recent calendar years to identify a violation of the Pb NAAQS. This is appropriate because the form of the Pb NAAQS is calculated over 36 consecutive valid 3-month site means (specifically for a 3 calendar year period and the 2 previous months). The EPA is generally basing these final designations on monitored Pb concentrations from Federal Reference Method (FRM) and Federal Equivalent Method (FEM) monitors from calendar years 2008-2010, which were the most recent quality assured and certified data available upon which to base designations decisions.

In the guidance, the EPA stated that the perimeter of a county containing a violating monitor would be the initial presumptive boundary for nonattainment areas, but also stated that the state, tribe, and/or the EPA could conduct additional area-specific analyses that could justify establishing either a larger or smaller area. The EPA indicated that the following factors should be considered in an analysis of whether to exclude portions of a county and whether to include additional nearby areas outside the county as part of the designated nonattainment area: (1) Emissions in areas potentially included versus excluded from the nonattainment area; (2) Air quality in potentially included versus excluded areas; (3) Population density and degree of urbanization including commercial development in included versus excluded areas; (4) Expected growth (including extent, pattern, and rate of growth); (5) Meteorology (weather/transport patterns); (6) Geography/topography (mountain ranges or other air basin boundaries); (7) Jurisdictional boundaries (e.g., counties, air districts, reservations, etc.); and (8) Level of control of emission sources. The EPA further indicated that we would consider information provided by the state resulting from one or more of the following techniques: (1) Qualitative analysis; (2) spatial interpolation of air quality monitoring data; or (3) air quality simulation by dispersion modeling.

The EPA received comments on the proposed guidance suggesting that violations of the Pb NAAQS were likely to occur in close proximity to stationary sources of Pb. In response, the EPA indicated that it agreed that Pb emissions do not generally transport over long distances (e.g., as compared to fine particulate matter), and that in situations where a single source, rather than multiple sources, is causing a NAAQS violation, the EPA believes that a state may well be able to use area-specific analyses to determine whether a nonattainment area that is smaller than the county boundary is appropriate.

The EPA found that states did use the factors and the variety of techniques identified by the EPA in making recommendations for nonattainment areas smaller than the county. In recommending boundaries, the EPA and states began with monitors that recorded a violation of the 2008 Pb NAAQS. As provided in Appendix R to 40 CFR part 50, all valid Pb-TSP data and all valid Pb-PM₁₀ data measured by a FRM or FEM monitor submitted to the EPA's Air Quality System (AQS), or otherwise available to the EPA, and meeting the requirements of 40 CFR part 58, including Appendices A, C, and E, are used in design value calculations.

For areas with a violating monitor, the designated nonattainment area must encompass the entire area that does not meet, and any nearby area that contributes to ambient air quality in the area that does not meet, the 2008 Pb NAAQS. Given the sources and characteristics of Pb emissions, states and the EPA generally found factors such as emissions, air quality, and meteorology to be particularly relevant in determining appropriate boundaries, while factors such as population density and expected growth were not as relevant for the 2008 Pb NAAQS, and thus did not play a significant role in determining boundaries. In some cases, states made a judgment that it was important to follow jurisdictional boundaries, particularly where jurisdictional boundaries smaller than a county exist. In other cases, states chose to rely primarily on air dispersion modeling to determine the recommended boundaries for nonattainment areas. In each case, the EPA reviewed the state recommendations and, for the most part, the EPA has accepted the state's recommendations; however, where the EPA felt that changes were necessary to a state's initial recommendation, we conveyed those issues to the state and have worked with the state to revise the boundaries.

VII. What air quality data has the EPA used?

The final Pb designations contained in this action are generally based upon air quality monitoring data from calendar years 2008-2010. As discussed previously, the form of the standard requires comparison of monitoring values from up to 36 3-month rolling averages (i.e., 3 years, plus 2 preceding months). A violation will have occurred if any of the 36 3-month average concentrations of either Pb-TSP or Pb-PM₁₀ exceeds the level of the NAAQS, and a finding of compliance will require that all 36 3-month averages of Pb-TSP be at or below the level of the NAAQS. Moreover, pursuant to the CAA, the EPA is making designations as expeditiously as practicable. Section 107(d) requires the EPA to designate areas as nonattainment if sufficient data exist to support such a designation.

Due to the timing of the siting of monitors under the monitoring plan established in the 2008 Pb NAAQS rule, data are available for several sites for early 2011 that did not have data available for 2008-2010. Two such monitors, one in Hayden, Arizona and one in Knox County, Tennessee, have data in AQS that exceed the standard for at least one 3-month period in 2011. Additionally, a site in Orange County, New York also has monitoring data in AQS for early 2011 that exceed the standard. The EPA anticipates that these data will be sufficient to support nonattainment designations or other appropriate action once quality assured and certified. However, the EPA cannot finalize nonattainment designations for these areas at this time because the data that were reported to AQS have not yet been quality assured and certified and appropriate nonattainment area boundaries have not been defined for two of the areas. Therefore, the EPA is designating these three areas as unclassifiable until this process can be completed. As noted above, there are no additional planning or control requirements that apply as a result of an unclassifiable designation, as compared to a designation of “unclassifiable/attainment.”

VIII. How do designations affect Indian country?

All counties, partial counties, or Air Quality Control Regions listed in the table at the end of this document are designated as indicated. For the first round of Pb designations, the EPA only designated nonattainment areas and deferred all remaining areas to this second round of Pb designations. All areas in Indian country are being designated unclassifiable/attainment.

IX. Where can I find information forming the basis for this rule and exchanges between the EPA, states, and tribes related to this rule?

Information providing the basis for this action and related decisions is provided in the technical support documents (TSDs), response to comments document, and other information in the docket. The TSDs, applicable EPA guidance memoranda, copies of correspondence regarding this process between the EPA and the states, tribes, and other parties, and the EPA's responses to comments, are available for review at the EPA Docket Center listed above in the addresses section of this document and on our designation Web site at http://www.epa.gov/leaddesignations/2008standards/index.html. State-specific information is available from the EPA Regional Offices.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action will establish nonattainment designations for certain areas of the country for the Pb NAAQS. This action is not a “significant regulatory action” under the terms of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011) and is therefore not subject to review under those orders.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This rule will respond to the requirement to promulgate air quality designations after promulgation of a NAAQS. This requirement is prescribed in the CAA section 107 of title 1.

C. Regulatory Flexibility Act

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because the rule is not subject to the APA and is subject to CAA section 107(d)(2)(B), which does not require that the agency issue a notice of proposed rulemaking before issuing this rule.

D. Unfunded Mandates Reform Act

This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It does not create any additional requirements beyond those of the CAA and Pb NAAQS (40 CFR 50.16); therefore, no UMRA analysis is needed. This rule establishes nonattainment designations for certain areas of the country for the Pb NAAQS. The CAA requires states to develop plans, including control measures, based on the designations for areas within the state.

One mandate that may apply as a consequence of this action to all designated nonattainment areas is the requirement under CAA section 176(c) and associated regulations to demonstrate general conformity of federal actions to SIPs. These rules apply to federal agencies making conformity determinations. The EPA concludes that such conformity determinations will not cost $100 million or more in the aggregate.

The EPA believes that any new controls imposed as a result of this action will not cost in the aggregate $100 million or more annually. Thus, this federal action will not impose mandates that will require expenditures of $100 million or more in the aggregate in any 1 year.

Nonetheless, the EPA communicated with government entities affected by this rule, including states, tribal governments, and local air pollution control agencies.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, or the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the Pb NAAQS. This rule will not modify the relationship of the states and the EPA for purposes of developing programs to implement the Pb NAAQS. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action is not designating any tribal areas as nonattainment. Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 2, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have Tribal implications.” This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule concerns the designation of areas for the Pb NAAQS. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas based on their designations. The TAR provides tribes the opportunity to apply for eligibility to develop and implement CAA programs such as programs to attain and maintain the Pb NAAQS, but it leaves to the discretion of the tribe the decision of whether to develop and implement which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It does not create any additional requirements beyond those of the Pb NAAQS (40 CFR 50.16). This rule establishes the designation for most areas of the country for the Pb NAAQS but no areas in Indian country are being designated as nonattainment under this rule. Additionally, no tribe has implemented a CAA program to attain the Pb NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does not have tribal implications, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to this rule, the EPA communicated with tribal leaders and environmental staff regarding the designations process. The EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2008 Pb NAAQS, to provide the EPA designations guidance, and to offer consultation with the EPA. The EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. The EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to the EPA about the EPA's intended designations for the Pb standards and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to the EPA about the general designations process for the Pb NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the rule was under development.

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks

The action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866. However, the protection offered by the Pb NAAQS may be especially important for children because neurological effects in children are among if not the most sensitive health endpoints for Pb exposure. Because children are considered a sensitive population, in setting the Pb NAAQS we carefully evaluated the environmental health effects of exposure to Pb pollution among children. These effects and the size of the population affected are summarized in the EPA's 2006 Air Quality Criteria Document for Pb and in the proposed and final Pb NAAQS rules. See http://www.epa.gov/airquality/lead/fr/20081112.pdf.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, the EPA did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on any population, including minority or low-income populations.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the U.S. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S. prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective December 31, 2011.

L. Judicial Review

Section 307 (b) (1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This rule designating areas for the 2008 Pb NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This rule establishes designations for areas across the U.S. for the 2008 Pb NAAQS. At the core of this rulemaking is the EPA's interpretation of the definition of nonattainment under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit.

Thus, any petitions for review of final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

List of Subjects in 40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

For the reasons set forth in the preamble, 40 CFR part 81, is amended as follows:

PART 81—DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

Subpart C—[Amended]

2. Section 81.301 is amended as follows:

a. By removing the table entitled “Alabama—Lead.”

b. By adding two tables entitled “Alabama—1978 Lead NAAQS” and “Alabama—2008 Lead NAAQS” to the end of the section.

3. Section 81.302 is amended by adding a table entitled “Alaska—2008 Lead NAAQS” to the end of the section to read as follows:

4. Section 81.303 is amended by adding a table entitled “Arizona—2008 Lead NAAQS” to the end of the section to read as follows:

5. Section 81.304 is amended by adding a table entitled “Arkansas—2008 Lead NAAQS” to the end of the section to read as follows:

6. Section 81.305 is amended as follows:

a. By removing the table entitled “California—Lead.”

b. By adding a table entitled “California—2008 Lead NAAQS” to the end of the section to read as follows:

7. Section 81.306 is amended by adding a table entitled “Colorado—2008 Lead NAAQS” to the end of the section to read as follows:

8. Section 81.307 is amended by adding a table entitled “Connecticut—2008 Lead NAAQS” to the end of the section to read as follows:

9. Section 81.308 is amended by adding a table entitled “Delaware—2008 Lead NAAQS” to the end of the section to read as follows:

10. Section 81.309 is amended by adding a table entitled “District of Columbia—2008 Lead NAAQS” to the end of the section to read as follows:

11. Section 81.310 is amended as follows:

a. By removing the table entitled “Florida—Lead.”

b. By adding two tables entitled “Florida—1978 Lead NAAQS” and “Florida—2008 Lead NAAQS” to the end of the section.

12. Section 81.311 is amended as follows:

a. By removing the table heading “Georgia—Lead” and adding in its place the table heading “Georgia—1978 Lead NAAQS.”

b. By adding a table entitled “Georgia—2008 Lead NAAQS” to the end of the section.

13. Section 81.312 is amended by adding a table entitled “Hawaii—2008 Lead NAAQS” to the end of the section to read as follows:

14. Section 81.313 is amended by adding a table entitled “Idaho—2008 Lead NAAQS” to the end of the section to read as follows:

15. Section 81.314 is amended as follows:

a. By removing the table entitled “Illinois—Lead.”

b. By adding a table entitled “Illinois—2008 Lead NAAQS” to the end of the section to read as follows:

16. Section 81.315 is amended as follows:

a. By removing the table entitled “Indiana—Lead.”

b. By adding two tables entitled “Indiana—1978 Lead NAAQS” and “Indiana—2008 Lead NAAQS” to the end of the section.

17. Section 81.316 is amended by adding a table entitled “Iowa—2008 Lead NAAQS” to the end of the section to read as follows:

18. Section 81.317 is amended by adding a table entitled “Kansas—2008 Lead NAAQS” to the end of the section to read as follows:

19. Section 81.318 is amended by adding a table entitled “Kentucky—2008 Lead NAAQS” to the end of the section to read as follows:

20. Section 81.319 is amended as follows:

a. By removing the table heading “Louisiana—Lead” and adding in its place table heading “Louisiana—1978 Lead NAAQS.”

b. By adding a table to the end of the section entitled “Louisiana—2008 Lead NAAQS.”

21. Section 81.320 is amended by adding a table entitled “Maine—2008 Lead NAAQS” to the end of the section to read as follows:

22. Section 81.321 is amended by adding a table entitled “Maryland—2008 Lead NAAQS” to the end of the section to read as follows:

23. Section 81.322 is amended by adding a table entitled “Massachusetts—2008 Lead NAAQS” to the end of the section to read as follows:

24. Section 81.323 is amended by adding a table entitled “Michigan—2008 Lead NAAQS” to the end of the section to read as follows:

25. Section 81.324 is amended as follows:

a. By removing the table entitled “Minnesota—Lead.”

b. By adding two tables entitled “Minnesota—1978 Lead NAAQS” and “Minnesota—2008 Lead NAAQS” to the end of the section.

26. Section 81.325 is amended by adding a table entitled “Mississippi—2008 Lead NAAQS” to the end of the section to read as follows:

27. Section 81.326 is amended as follows:

a. By removing the table entitled “Missouri—Lead.”

b. By adding two tables entitled “Missouri—1978 Lead NAAQS” and “Missouri—2008 Lead NAAQS” to the end of the section.

28. Section 81.327 is amended as follows:

a. By removing the table heading “Montana—Lead” and adding in its place table heading “Montana—1978 Lead NAAQS.”

b. By adding a table to the end of the section entitled “Montana—2008 Lead NAAQS.”

29. Section 81.328 is amended as follows:

a. By removing the table heading “Nebraska—Lead” and adding in its place table heading “Nebraska—1978 Lead NAAQS.”

b. By adding a table to the end of the section entitled “Nebraska—2008 Lead NAAQS.”

30. Section 81.329 is amended by adding a table entitled “Nevada—2008 Lead NAAQS” to the end of the section to read as follows:

31. Section 81.330 is amended by adding a table entitled “New Hampshire—2008 Lead NAAQS” to the end of the section to read as follows:

32. Section 81.331 is amended by adding a table entitled “New Jersey—2008 Lead NAAQS” to the end of the section to read as follows:

33. Section 81.332 is amended by adding a table entitled “New Mexico—2008 Lead NAAQS” to the end of the section to read as follows:

34. Section 81.333 is amended as follows:

a. By removing the table heading “New York—Lead” and adding in its place table heading “New York—1978 Lead NAAQS.”

b. By adding a table entitled “New York—2008 Lead NAAQS” to the end of the section.

35. Section 81.334 is amended by adding a table entitled “North Carolina—2008 Lead NAAQS” to the end of the section to read as follows:

36. Section 81.335 is amended by adding a table entitled “North Dakota—2008 Lead NAAQS” to the end of the section to read as follows:

37. Section 81.336 is amended as follows:

a. By removing the table entitled “Ohio—Lead.”

b. By adding two tables entitled “Ohio—1978 Lead NAAQS” and “Ohio—2008 Lead NAAQS” to the end of the section to read as follows:

38. Section 81.337 is amended by adding a table entitled “Oklahoma—2008 Lead NAAQS” to the end of the section to read as follows:

39. Section 81.338 is amended by adding a table entitled “Oregon—2008 Lead NAAQS” to the end of the section to read as follows:

40. Section 81.339 is amended as follows:

a. By removing the table entitled “Pennsylvania—Lead.”

b. By adding a table entitled “Pennsylvania—2008 Lead NAAQS” to the end of the section to read as follows:

41. Section 81.340 is amended by adding a table entitled “Rhode Island—2008 Lead NAAQS” to the end of the section to read as follows:

42. Section 81.341 is amended by adding a table entitled “South Carolina—2008 Lead NAAQS” to the end of the section to read as follows:

43. Section 81.342 is amended by adding a table entitled “South Dakota—2008 Lead NAAQS” to the end of the section to read as follows:

44. Section 81.343 is amended as follows:

a. By removing the table entitled “Tennessee—Lead.”

b. By adding two tables entitled “Tennessee—1978 Lead NAAQS” and “Tennessee—2008 Lead NAAQS” to the end of the section.

45. Section 81.344 is amended as follows:

a. By removing the table entitled “Texas—Lead.”

b. By adding two tables entitled “Texas—1978 Lead NAAQS” and “Texas—2008 Lead NAAQS” to the end of the section.

46. Section 81.345 is amended by adding a table entitled “Utah—2008 Lead NAAQS” to the end of the section to read as follows:

47. Section 81.346 is amended by adding a table entitled “Vermont—2008 Lead NAAQS” to the end of the section to read as follows:

48. Section 81.347 is amended by adding a table entitled “Virginia—2008 Lead NAAQS” to the end of the section to read as follows:

49. Section 81.348 is amended by adding a table entitled “Washington—2008 Lead NAAQS” to the end of the section to read as follows:

50. Section 81.349 is amended by adding a table entitled “West Virginia—2008 Lead NAAQS” to the end of the section to read as follows:

51. Section 81.350 is amended by adding a table entitled “Wisconsin—2008 Lead NAAQS” to the end of the section to read as follows:

52. Section 81.351 is amended by adding a table entitled “Wyoming—2008 Lead NAAQS” to to the end of the section read as follows:

53. Section 81.352 is amended by adding a table entitled “American Samoa—2008 Lead NAAQS” to the end of the section to read as follows:

54. Section 81.353 is amended by adding a table entitled “Guam—2008 Lead NAAQS” to the end of the section to read as follows:

55. Section 81.354 is amended by adding a table entitled “Northern Mariana Islands—2008 Lead NAAQS” to the end of the section to read as follows:

56. Section 81.355 is amended by adding a table entitled “Puerto Rico—2008 Lead NAAQS” to the end of the section to read as follows:

57. Section 81.356 is amended by adding a table entitled “Virgin Islands—2008 Lead NAAQS” to the end of the section to read as follows: